[NFBF-L] FW: [New post] Blind Man Loses Website Discrimination Case

Wed Sep 20 14:09:24 UTC 2023

This illustrates why we can not stand down on website and mobile application accessibility. All businesses must be made aware and facilitate changes in how they conduct their business online. While I am ambiguous on compensatory damages when not coupled with making effective change, I am disappointed in the California court’s decision in this case. 

Sincerely, 

Camille Tate 

2nd Vice President, National Federation of the Blind of Florida 

President, Melbourne Space Coast Chapter, National Federation of the Blind of Florida 

Phone: 321 372 4899 

From: NFBF-L <nfbf-l-bounces at nfbnet.org> On Behalf Of Kaye Baker via NFBF-L
Sent: Tuesday, September 19, 2023 7:05 PM
To: 'NFB of Florida Internet Mailing List' <nfbf-l at nfbnet.org>
Cc: Kaye Baker <kaye.j.zimpher at gmail.com>
Subject: [NFBF-L] FW: [New post] Blind Man Loses Website Discrimination Case

Here is a blog post that illustrates why we need the Websites  Accessibility Act.

From: Page 7 <comment-reply at wordpress.com> 
Sent: Tuesday, September 19, 2023 9:56 AM
To: kaye.j.zimpher at gmail.com
Subject: [New post] Blind Man Loses Website Discrimination Case

burtonmedia7 posted: " by  Jessica Stemple    (The following is a blog from the Valenci Rose law firm from Los Angeles.)    Consumers in America and around the world have embraced online shopping for everything from food and fashion to vehicles,"  <http://burtonmedia.org> Page 7 

Blind Man Loses Website Discrimination Case 

burtonmedia7

Sep 19 

by  Jessica Stemple

   (The following is a blog from the Valenci Rose law firm from Los Angeles.) 

   Consumers in America and around the world have embraced online shopping for everything from food and fashion to vehicles, medicine, travel, and countless other purchases. But many retail websites are inaccessible for consumers who are blind or visually impaired because these sites are incompatible with the screen-reading software many of these consumers must use.

   Do these websites violate state and federal laws that prohibit discrimination against people with disabilities? That was the question before the California Court of Appeal recently in Martinez v. Cot’n Wash.

   Abelardo Martinez, Jr. was blind and relied on screen reading software to utilize the internet and read the content of websites. When Martinez accessed Cot'n Wash ("CW")'s website, there were communication barriers preventing him from having full access to all of the content.

   Martinez believed CW's website violated California’s Unruh Act which states in part: “all persons within the jurisdiction of this state ... no matter what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

   Based on this alleged violation, Martinez's attorney contacted CW in August 2020 informing it that the website was not accessible to those with visual disabilities and that Martinez planned to sue unless CW revised the website and paid him a settlement.

   CW, a Pennsylvania company with no physical facilities in California, denied violating California law and stated that its website complied with industry guidelines for accessibility. CW even went so far as to hire a consultant to ensure that its website was in compliance and provided the required accessibility.

   After CW denied Martinez's claim, Martinez sued CW alleging that its e-commerce website engaged in practices denying the visually impaired from fully accessing and enjoying its website, citing violations of the Unruh Act and the Americans with Disabilities Act ("ADA").

   CW demurred to the complaint and requested that the court dismiss the case on the grounds that, even if the facts alleged in the complaint are true, they failed to establish a valid cause of action. The key issues cited by CW were (1) whether the allegations established intentional discrimination, and (2) whether CW’s website constituted a “place of public accommodation” for purposes of the ADA.

   The court agreed with CW and sustained the demurrer. Martinez appealed.

   On appeal, the Court did not find evidence supporting intentional discrimination because Martinez did not plead facts showing CW acted willfully to discriminate against the visually impaired.

   The Court then turned to the ADA and found that it is silent on requirements for commercial websites – which is hardly surprising since the ADA was enacted in 1990, years before such sites were commonly used.

   In its analysis, the Court stated that the plain language of the ADA uses the term “place,” and a website cannot be considered to be a "place." Also, even though Congress has been aware of this ambiguity for years, it has chosen not to amend the legislation to include websites. And the issue of whether a website is “a place of public accommodation” for the purposes of the ADA has been decided in conflicting ways by different federal courts.

   Similarly, California courts have also failed to clearly determine whether a standalone website (without a related physical location in the state) is a “place of public accommodation.”

   Martinez argued that it is absurd for the law to protect a disabled consumer who buys goods in a store, but not protect the same individual if the purchase is made online, by mail, or by phone.

   But the court rejected this argument because while it might seem sensible to treat retail websites like other retailers, it does not follow that treating them differently cannot also make sense.

   The Court reasoned that the widespread use of websites in today’s commerce doesn’t change the fact that “they are their own animal, a creature unlike brick-and-mortar establishments,” so it would not be unreasonable to treat them differently under the law.

   The justices affirmed the trial court’s dismissal of the complaint and ordered each party to bear their costs on appeal.

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